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- [00:00]
Katie Page
Katie I'm Katie Page, CEO of Harvey Norman. Since 2018, Harvey Norman has been a key partner in the Australians investigative podcasts such as Sick to Bronwyn, Shandy's Story, the Teacher's Pet and the Night Driver. Harvey Norman are proud sponsors of the Australians podcast investigations and their award winning journalism.
- [00:27]
Hedley Thomas
My name is Hedley Thomas. Sick to Death is based on my book of the same name and it's the True Story of Dr. Jayant Patel's Lies and manipulation and the herculean effort it took to finally stop him. We've used voice actors throughout this series and on occasion the real people from this story have read their words for us. It is brought to you by me and the Australian.
- [01:03]
Narrator / Reporter
Chapter 68 the Doctors August 2005 Dr. Jeff DeLacy peered at the woman's abdomen and tried to disguise his immediate bewilderment. He looked again and shook his head. There was no mistaking what had happened. The question was why? The woman had been operated on by Jayant Patel for a hernia.
- [01:27]
Hedley Thomas
He repaired it.
- [01:28]
Narrator / Reporter
She returned to him with a bowel obstruction, not an unusual complication from a recurrent hernia. But Patel's technique of hernia repair was unique, not something Delacey, a well qualified surgeon in private practice in Bundaberg, had ever seen before. One of the problems common to hernia repairs is inadvertent damage to other anatomical structures. When the woman went back to Patel, the small bowel was vulnerable. It would have been unfortunate, but not unacceptable for a single stitch used in the hernia repair to pass through her small bowel. But something bizarre had happened. If De Lacey had not seen the needle patchwork with his own eyes, he would not have believed it possible. He observed that stitches had passed through 20 loops of the small bowel. He wondered if it was incompetence on a remarkable scale or something else, something deliberate.
- [02:31]
Dr. Jeff DeLacy
What it represents, in my experience, is the most ham fisted attempt at repairing a hernia I'd ever seen. It's certainly possible to catch a loop of bowel during closure of an abdomen. I found it impossible to envisage how you could go through the bowel with every stitch and not notice unless you were looking out the window, you know, rather than at the patient. And there have been a lot of other examples of the sort of errors of that magnitude.
- [02:57]
Narrator / Reporter
The evidence of Delacey at the inquiry was riveting in a macabre way. It made me wonder about Patel's motive if he were to mount an insanity defence, arguing that he had lost his mind Some of his botch ups and clinical decisions as described by Dr. De Lacey would be easier to understand. Tony Hoffman suspected that Patel might have caused the complications to some of the patients so that when they returned to his care he would know how to fix the very problem he had caused.
- [03:32]
Tony Hoffman
It's a sickness. He craves attention and adulation. He wants the other doctors to think he's brilliant. He was prepared to ruin healthy organs to make himself look good as the surgeon doing the repair.
- [03:46]
Narrator / Reporter
More than 150 patients and their medical files were examined by Dr. DeLacy in the weeks and months after the Patel story broke. The Moore Delacy, who had performed dozens of corrective procedures, looked at their injuries and the documentation. The more he realised how dangerous and dishonest Patel had been for the two years he was at the hospital.
- [04:11]
Dr. Jeff DeLacy
One of the points that I'd like to make, if I could, was that I'm not certain that the magnitude of his errors, the number of problems that he's had, the number of deaths that he's had, has ever been sort of appropriately compared to what we might have expected him to have. And these things aren't just things that happen to an average general surgeon at all. They're not 10 times what you might expect. They're more like 100 times what you might expect.
- [04:36]
Narrator / Reporter
Dr. DeLacey had decided there was no rational explanation for the number of patients Patellin insisted on taking to theatre or the complexity of the operations he performed. Many of these patients should have been sent home. They were too frail or sick to undergo major surgery.
- [04:55]
Dr. Jeff DeLacy
He saw operations as an end to themselves, not as a way of treating patients, not as a way of improving their health. In my opinion.
- [05:03]
Narrator / Reporter
Tony Morris asked whether in de Lacey's observations of Patel's handiwork, the surgeon was at the low end of an acceptable degree of competence. Dr. DeLacey replied, Far worse, Far worse.
- [05:20]
Dr. Jeff DeLacy
I've looked after complications in the last four months that I've never seen before. I've had an opportunity to sort of assess his decision making both preoperatively, intraoperatively and post operatively, and it was terrible. Terrible care doesn't necessarily result in terrible outcomes, it just results in an increased likelihood of those outcomes being terrible. And for example, with patients who have had cancer removed, whether they will or will not have their cancer back in five years and you can generate a statistical risk of that happening. They certainly don't have symptoms of cancer at the moment, but because of what Dr. Patel has done or not done, they have got an increased risk of their cancer coming back in five years.
- [06:02]
Narrator / Reporter
He explained how when a segment of a hollow tube is removed, a typical example being part of a large bowel that contains a bowel cancer, two ends have to be joined together again to re establish the continuity of the gastrointestinal tract. In technical terms, the join is called anastomosis, a key part of the operation. After an operation, the recovery of the patient often hinges on whether the joint leaks or HEALS. Dr. De Lacey said, if it leaks,
- [06:38]
Dr. Jeff DeLacy
the contents of that tube, in this case the bowel spills out into the rest of the abdomen with peritonitis and death if they don't have another operation. And certainly there were many examples in Dr. Patel's surgery. Anastomoses do leak in the best hands, they don't all leak. And certainly the number of leaks that I have seen would be, you know, grossly excessive. I didn't see any evidence that he judged his outcomes at all. If there was a problem, then it was inadequate suture material or the practising in a third World hospital, which is how he described Bundaberg Base Hospital or something else, some other issue, some reason the patient had done something wrong or whatever. And I suspect, you know, from talking to a lot of these patients and assessing his work, that he never had judged the outcomes he had having these problems, certainly in the States, it seems, for 10 or 20 years. And he spent his whole career not fixing up these fairly basic problems, because they weren't his problems, they were somebody else's problems.
- [07:36]
Narrator / Reporter
Before he became involved in looking after Patel's patients, many of whom no longer trusted the public health system, Dr. De Lacey doubted the stories that I had written about Patel's incompetence. He suspected the allegations being made by the nurses and the patients were exaggerations. Having met Patel a few times in the hospital, Dr. DeLacy regarded him as arrogant and controlling. But the opportunity to witness his surgical techniques had not arisen. But his view changed.
- [08:13]
Dr. Jeff DeLacy
I've got a different opinion now. My opinion now is that the real story of what was going on there was worse, that the number of patients was, you know, 10 to 100 times more than I thought there would be and that the type of complications that were allowed to happen there were gross by comparison to what I was expecting. We certainly didn't know that he was the subject of numerous inquiries overseas, but he did. And a lot of these issues, the subverted mortality and morbidity meetings, the failure to transfer patients, his relationships or lack of relationships with other staff were Explainable in my opinion by just a desire not to have his work checked for fear of this, I guess.
- [08:51]
Narrator / Reporter
Of the 150 plus former Patel patients seen by DeLacey, fewer than 20 were well managed by the former director of Surgery. The overwhelming majority were victims of a standard of care below that of a reasonably competent surgeon. Dr. DeLacey cited the example of one middle aged woman.
- [09:13]
Dr. Jeff DeLacy
Numerous investigations were done and Dr. Patel came to the conclusion that the patient had a diagnosis called ischemic colitis, which is poor blood supply to the bowel. She had an operation which would have been appropriate for someone with ischaemic colitis, but it was not appropriate for someone with Crohn's disease which is what she actually had. She had a very difficult post operative course but survived. She has been left with most of her bowel having been removed. Her day to day lifestyle is that she passes between 12 and 20 loose bowel motions per day. She was 85kg, now she's 56kg. All of these people have those magnitude of problems. It is a long listening of medical problems.
- [09:54]
Narrator / Reporter
Before he operated on the patients to attempt to correct the problems Patel had created or worsened, Dr. DeLacy regarded Patel's notes as slipshod. After a number of operations, he no longer had faith in Patel's notes. They were fundamentally dishonest. Like the man himself himself. The notes repeatedly and falsely purported that various risks and complications were explained to the patients or that there were no problems after theatre. Dr. De Lacey said a lot of it is rubbish.
- [10:30]
Dr. Jeff DeLacy
There must have been somebody dying on the surgical ward all of the time and there must have been horrendous complications physically being managed on the surgical ward all of the time. Those closest to him were most threatened by him and he spent most of his energy intimidating or otherwise isolating his practice from them. There are systems in place, albeit faulty ones, to try to prevent this from happening. And my personal opinion is that this tragedy wouldn't have occurred unless there was both active subversion by the individual and complacency at best by the supervising body that was supposed to identify these problems. In my opinion, there was a predisposition in the the system to allow a rogue surgeon to be placed in this position of power and allowed free reign.
- [11:15]
Narrator / Reporter
Whereas Dr. De Lacey witnessed serious surgical complications, Dr. Peter Woodruff, the primary expert witness, was struck by an unusual omission. After his examination of patients, notes, charts and x rays in 47,000 pages of material related to 221 patients, a small sample of the 1500 men, women and children as young as six treated by Patel in his two years at Bundaberg, Dr. Peter Woodruff could not find a single letter or document written by Patel to seek the opinion or advice of another specialist or doctor. Worse than that, there was not one letter from him about his management of his patients or their outcomes. As Ralph Devlin, the lawyer for the medical board, put it, Patel had operated in splendid isolation. The highly regarded vascular surgeon Peter Woodruff
- [12:16]
Dr. Peter Woodruff
said, I have no hesitation in saying that his performance was incompetent and that this performance is far worse than average or what one might expect by chance.
- [12:27]
Narrator / Reporter
Although he regarded Patel's complication rate as frightening, Woodruff was determined to remain objective, dispassionate and impervious to the horror stories. Woodruff was also limited by the terms of reference of his Queensland Health sponsored review. He examined no bodies, only documents, many of them the work of a surgeon with a record of dishonesty. In the absence of the patients, Peter Woodruff gave Patel the benefit of the doubt in a number of cases. As a leading figure in the Royal Australasian College of Surgeons, Peter Woodruff had seen firsthand the reluctance and fear of politicians to introduce major health care reforms. The politicians were always worried about a voter backlash. Dr. Woodruff told me how he had once made an irrefutable case for systemic change to a former Federal Health Minister, Dr. Michael Wooldridge, and Wooldridge had replied to him, yes, you're right, we are going to get onto it straight after I have removed the old age pension. Dr. Woodruff had been around operating theatres long enough to know surgical mistakes were inevitable and in many cases, acceptable. The practice of surgery was not a benign undertaking, but provided you were honest and corrected your technique or reconsidered whether the approach was even justified. Occasional errors of judgment would not normally lead to disqualification in surgery. Dr. Woodruff knew of colleagues who were defensive to the point of concealing mistakes or pretending that they just didn't occur. Pride and the aggression of personal injury lawyers were contributing factors, but Patel was a puzzle. Dr. Woodruff at first struggled to understand the motives of the surgeon, whom he regarded as intelligent and industrious. Late one evening, the answer came as Peter Woodruff used his laptop computer to scroll through the list of patients who had died or suffered serious injury. It suddenly occurred to him that the worst cases involved those procedures which Patel had been banned from performing in the United States.
- [14:51]
Dr. Peter Woodruff
And I wonder whether this is not the missing piece of the mosaic that I was ignorant of. I wonder if his motivation for doing these quite outlandish operations is not to try and reassert in his own mind that what he's been precluded from doing in Oregon he is in fact capable of doing, and that he is in effect re credentialing himself, if only in
- [15:15]
Narrator / Reporter
his own mind, woodruff said. After so much speculation, the pinpointing by Woodruff, de Lacy and Another senior surgeon, Dr. Barry O', Laughlin, of many examples of atrocious care for the patients of Bundaberg was distressing. Toni Morris was reminded of something attributed to Sir Arthur Conan Doyle, Scottish practitioner and creator of the character of Sherlock Holmes.
- [15:45]
Tony Morris
When a doctor goes wrong, he is the first of criminals. He has nerve and he has knowledge.
- [15:52]
Narrator / Reporter
My concerns revolved around the knowledge of the other doctors with whom Patel had worked closely. I had difficulty understanding how nurse Tony Hoffman, who had no surgical training and had never seen Patel operate, knew instinctively that he was dangerous and she did something about it. Yet several doctors in Bundaberg who worked beside the director of surgery did not. Did the other doctors believe that Patel had virtues? Was the silence part of the culture spoken of by Woodruff? It was the view of the Chief Health Officer, Dr. Jerry Fitzgerald, that the anaesthetists were in the best position to judge the competence of a surgeon. But Dr. Martin Carter, the anaesthetist in charge of the intensive care unit at BundaBERG for the two years Patel was director of surgery, was at pains in his evidence to absolve himself of any responsibility. Dr. Carter said, I knew Tony Hoffman
- [16:54]
Dr. Martin Carter
had concerns about Dr. Patel's competence. Unfortunately for an understanding between us, the idea of what we're in a position to do about these sorts of things is different between nurses and doctors. It takes a long time for one to work out whether you can actually prove almost effectively in a court of law that the person you are talking about is incompetent to do what they are saying they can do and stop them doing it. I mean, if you as a barrister or solicitor were continually losing cases, nobody would go to you, but at least you wouldn't be sort of losing anything other than your livelihood here. In terms of a surgeon or a physician or a psychiatrist or whatever, how do you know when they're missing things that they shouldn't miss, or whether what's happening is basically beyond anybody's sort of care?
- [17:47]
Tony Morris
You told us very candidly that you didn't like the man. You found him brash and abrasive and so on. Was it your sense that there was almost a degree of megalomania in it, that he thought he'd come from America to show this little country town how surgery is done and he just saw no limits to what he could or should do.
- [18:06]
Dr. Martin Carter
I think that probably would be a reasonable way of expressing it. Certainly more polite than mine.
- [18:12]
Narrator / Reporter
Carter saw himself as responsible for keeping the patients alive, pain free and unresponsive during surgery, monitoring the vital signs and ensuring the flow of appropriate medication.
- [18:28]
Dr. Martin Carter
It is very difficult to also monitor the surgery at the same time. In my opinion, Dr. Patel was not the worst surgeon that we had at the hospital. He was not the best surgeon, but in my experience there have been worse at the hospital.
- [18:43]
Narrator / Reporter
Unfortunately, nobody at the inquiry asked Dr. Carter to identify those surgeons whom he rated as more incompetent than Patel. Nor was Carter asked whether he had taken steps to bring those unnamed surgeons to the notice of authorities. Chapter 69 the collapse the 1st 2nd September 2005 After 50 days of public hearings, more than 5,000 pages of transcript evidence, and the unearthing of maladministration as well as negligence in surgery at Bundaberg Hospital and elsewhere, Tony Morris was close to the end. The inquiry chief was considering major reforms that might save countless lives. The legal action by Peter Leck and Dr. Darren Keating threatened to sabotage the reform agenda. Near the end of the month long wait for Supreme Court Justice Martin Moynihan's decision, Toni Morris had become desperate to stave off an inglorious end to his delicately poised inquiry. He assured Leck and Dr. Keating that he was not proposing to make findings against them. He extended a similar undertaking to the former health ministers Wendy Edmond, Ann Gordon Nuttall and the SAC director general, Dr. Steve Buckland, and his deputy, Dr. John Scott. They all basked in immunity as Morris placated key witnesses and aimed to blame the system for the obvious shortcomings. I wondered if there was anyone left to be held responsible for this health disaster. A legal contact had confidently told me that Moynihan would oust Morris and kill the inquisition. It was based on a cryptic comment that the judge was said to have made. The comment was a picture tells a thousand words. The cliche was a reference to the hours of footage subpoenaed from the television stations that showed Morris responding emotively, sarcastically and caustically while questioning Leck and Keating. The footage lent the devastating force to the legal bid, but ironically, it was only available due to the unusual decision of Morris to allow cameras into the inquiry in the first place. Before the 50th day of public hearings, Richard Douglas, a dogged but unfailingly courteous lawyer had joined the fray to help the flagging inquiry team. Douglas was fresh and methodical. He pushed hard for political explanations for the subterfuge that had been practised with the waiting list for surgery. He understood how political paranoia about the lists was part of the explanation for the Bundaberg hospital disaster and the culture of concealment in the health system.
- [21:51]
Richard Douglas
Do you agree that to wax lyrical in press releases about short waiting times for elective surgery without referring in the same breath to the particulars of the unofficial list is, to put it at its lowest, misleading?
- [22:05]
Narrator / Reporter
He asked the health minister, Wendy Edmond. Essentially, Edmond argued that it was much more complicated and that she had originally intended to release all the lists when sworn in as health minister. But she had soon realised they were political dynamite. The inquiry had been a lawyer's picnic at a cost to taxpayers of more than $100,000 a day. But at that stage, the patients and their families had not experienced emotional or financial compensation. They feared the prospect of the inquiry being shut down by the judge. Karen Oriel, the mother of Shannon Mobbs, the boy whose leg was amputated, said,
- [22:48]
Katie Page
our lives have been catastrophically changed by what has occurred. My son has been forced to endure a further eight operations. He will have to learn to walk again with the aid of a prosthetic limb. We have to live with the constant thought that my son's leg could have been saved if he had received appropriate medical treatment. It is almost unbearable for me to have to hear the evidence as I am tortured with thoughts of if only my son had not been exposed to Dr. Patel and had been transferred to a Brisbane hospital.
- [23:18]
Narrator / Reporter
One of the inquiry's legal sleuths, Angus Scott, had a quip. Just one hour until either the guillotine comes down or the gates open, he said. On the afternoon of Thursday 1st September, my friend and colleague Amanda Watt perched over the reporter's desk in court 15, waiting for the decision. The gloomy room was crowded. There was tension and muffled murmuring until Justice Moynihan entered. He was so impassive he might have been pronouncing on a trivial neighbourhood dispute, matter of factly, as if he made similar rulings every other day. He found in favour of Peter Leck and Dr. Darren Keating. Justice Moynihan ruled that Toni Morris had indeed shown ostensible bias. Amanda Watt and I reeled. The findings surprised surprised Premier Peter Beattie, but it outraged Queenslanders. Evening polls by the TV stations drew record responses from viewers who overwhelmingly condemned the judgment. Beryl Crosby, Said it best.
- [24:28]
Hedley Thomas
I feel like I've been hit with
- [24:30]
Narrator / Reporter
a brick, she told me. Des Brammach's widow, Tess, who went to almost every day of the public hearings, was distraught.
- [24:40]
Tess Bramwich
She said, I feel like they're trying to bury this, that it's about politics
- [24:44]
Katie Page
again and not the patience.
- [24:46]
Tess Bramwich
But I will never rest.
- [24:48]
Narrator / Reporter
Tony Hoffman sent me a message that she wanted forwarded to Toni Morris.
- [24:54]
Tony Hoffman
When the ruling came down today, there was personal outrage from the staff at the hospital. I'm extremely angered that Premier Beattie has allowed this inquiry to be sabotaged. It was an honour to be a part of at least what we attempted to do to make Queensland Health a safe place to work and more importantly, a safe place to be a patient.
- [25:17]
Narrator / Reporter
Despite his earlier pledge to appoint another inquiry chief in the event of Toni Morris being ousted, Peter Beattie seized on the chance to end the political pain. Since Jayant Patel became a household name just 18 weeks earlier, the Premier had lost his personal standing, a mountain of political capital, two by elections, a health minister and a handful of top administrators. The Health Department was in meltdown and now the public blamed him for a judicial finding. He decided that there would not be a second inquiry. Breaking his earlier promise, Morris was sipping coffee with his parents, Graham and Jan, in a George street cafe when his friend, lawyer Tony Barlow, tipped me off to their whereabouts. All is not lost, Morris said.
- [26:12]
Tony Morris
If there is any personal disappointment, it's because I feel that I have let down all of these people.
- [26:19]
Narrator / Reporter
And his mother said, I think you got too emotionally involved.
- [26:24]
Tony Morris
No. As one of the patients said in the Journal of Record, the Courier Mail this morning, how could you not be biased when you see and hear what's going on and Peter Leck and Darren Keating are not making any explanation for it. They were not losing their spouse or their limbs or their bowels. The supreme irony of all this legal action by Leck and Keating was to protect their reputations. And I just wonder what good it's done to their reputations.
- [26:53]
Narrator / Reporter
Graham Morris commended a cartoon in the Gold Coast Bulletin. It depicted Peter Leck and Darren Keating saying to maimed patients of Patel, oh, yeah, you think you suffered? When the Commissioner asked us questions, he didn't say, pretty please with sugar on top, the big meanie. But Peter Beattie ruled out an appeal, despite compelling legal submissions by Jerry Mullins, the lawyer for the patients, who urged the appointment of a new inquiry head to direct the near complete show to its conclusion. Beattie had given instructions to wind it up. The spurious justification cited was that all the Evidence had been contaminated. There would be no substitute inquiry Chief, no findings, just costly failure to soften the blow. Beattie put the final touches to a generous compensation deal for the patients. If the money were right, maybe they would keep relatively quiet. Dr. Keating, almost expressionless in the public hearings, was seen laughing by one of my colleagues on George street after the verdict. Peter Lech's solicitor, Patricia Feeney, who felt very strongly that her client was harshly treated by the inquiry, looked delighted with the outcome. As she struck strolled from the court's complex. In the absence of another inquiry, I was depressed. Although it was hard to admit openly in my heart I knew Morris went too far and had at times played favorites. He had become the major performer of a drama so strange no one could have dreamt it. Like many a brilliant man before him, his successes were spectacular and his failures disastrous. A number of key witnesses were adamant that the extravagant behaviour of Morris had persuaded them to give evidence.
- [28:53]
Dr. Charles Nankable
It is precisely Mr. Morris particular style that gave me the confidence to come forward and speak the truth without fear.
- [29:01]
Narrator / Reporter
Dr. Charles Nankable told me.
- [29:03]
Dr. Charles Nankable
I support him without reservation. I agree fully with Dr. Peter Cook's comments about it being a once in a lifetime opportunity. Indeed, when I retire and look back on my medical career, I will regard that having contributed to this inquiry and thus to have helped all Queenslanders to an improved health system, will be a major highlight.
- [29:26]
Narrator / Reporter
Many of the lawyers and judges around town believed that Tony Morris had made a fool of himself and got everything he deserved. Key inquiry staff, particularly the hard working and talented lawyer Damien Atkinson, who knew the evidence down to the finest details, were crestfallen. What a waste, lamented Wayne King, one of the investigators. But Morris was only briefly daunted. Having ensured his place in history, he began writing a detailed report about the inquiry, the whole hospital and the personality of Patel. Perhaps Morris felt a little guilty for failing to finish.
- [30:08]
Tony Morris
He needed more than vindication. He needed respect. He needed admiration. He needed to be valued.
- [30:15]
Narrator / Reporter
Morris wrote in the report that he presented to a federal parliament committee. It was a paragraph that might also have described the ousted in question, inquiry commissioner Tony Morris continued.
- [30:31]
Tony Morris
Those whose opinions did not matter to him, especially amongst the nursing staff, were lucky just to be ignored. Some of the junior medical staff praised his care, enthusiasm and generosity as a teacher. Quite conceivably, the image of a respected pedagogue was one which suited Patel's ego. But any who had the temerity to question his judgment or ability to were swatted away like insects. Thus he surrounded himself with sycophants and flatterers when he could find them, and was otherwise content to work with people who had the good sense to keep their opinions to themselves.
- [31:18]
Podcast Host (Hedley Thomas or Narrator)
This podcast is made possible by subscribers to the Australian and our principal sponsor, Harvey Norman. Since late 2017, when I started pursuing Chris Dawson for the 1982 murder of his wife Lyn, Harvey Norman has been a loyal backer. It began with the Teacher's Pet, and Harvey Norman and its CEO Katie Page's support has continued for over eight years. I'm proud to have had their backing on all of mine and the Australians investigative podcasts the Night Driver, Shandy's Story, Shandy's Legacy, the Teacher's Trial, the Teacher's Accuser, Bronwyn, and most recently, the Sick to Death podcast. For more information on this podcast, go to theaustralian.com au.
- [32:18]
Hedley Thomas
Chapter 70 Jeff Davies 8 September 2005 Beryl Crosby sounded upset and frustrated when we spoke over the weekend. The patients for whom she advocated were in retreat as a result of Peter Beattie's lightning trip to Bundaberg to outline the generous compensation package and cajole key public figures like Tony Hoffman. He's talking them around a glum, Crosby told me. She had been excelling in a crash course in politics and leverage since being thrust into a role as leader of the support group. But she wanted nothing less than a new inquiry, and Beryl Crosby threatened to organise protest marches until she got her way. Although Peter Beattie sounded determined to avoid any further scrutiny of the health system, he had underestimated the public anger at the turn of events. His hasty adoption of the Supreme Court's ruling was a mistake. It had fuelled the suspicions of many Queenslanders who unfairly blamed Peter Beattie for the inquiry's shutdown. The politicians backbenchers, already petrified by polling showing that they faced defeat unless public sentiment could be swung around, were deluged with complaints from voters. Even critics of Toni Morris believed that the inquiry's total shutdown was overkill. Jeff Davies qc, a newly retired Court of Appeal judge with impeccable credentials to head any new inquiry, was also in that camp, having watched the first inquiry unravel the unsentimental. Davies was unsurprised by Justice Martin Moynihan's ruling. But Davies was troubled by some of the misinformation being spouted, such as the claims that all the evidence from the Morris inquiry was contaminated and therefore of no use. Steve Austin, the Six 12 ABC radio presenter, used his morning show to interview another Retired and highly respected judge James Thomas, who methodically destroyed the claims about all the evidence being contaminated. There was no legal reason why a new commissioner could not resume hearings. With one of the excuses for not restarting the inquiry now completely discredited, Peter Beattie unhappily bowed to the public demands. The most logical choice was Jeff Davies.
- [35:07]
Dr. Martin Carter
We've listened to the people and I don't see that as a crime or a sin. Too often politicians don't have the guts to listen to the people.
- [35:15]
Hedley Thomas
Well, I have, beattie said unsmilingly. Senior judges and lawyers could not understand why Davies had not been asked in the beginning, back in April 2005. But after the Morris collapse, friends told Davies that he would be mad to take it on. He weighed the decision for a couple of days before saying, yes, I could
- [35:43]
Jeff Davies
see the unsatisfactory state of affairs and I don't criticise the judge's decision to terminate the commission of inquiry. On the contrary, I think it was the correct decision. But I could see the terrible position Queenslanders would be in unless. Unless something was done.
- [36:00]
Hedley Thomas
Davies told me before his retirement early in 2005, I had interviewed him about aspects of the law that he believed needed urgent reform.
- [36:11]
Jeff Davies
I want to let go of the day to day work I've been doing. I don't like, for example, doing criminal appeals which involve mostly sex cases. I find them distasteful. It's a very important, important job to do and I've tried to do my best. But I do want to be involved in what I believe are necessary reforms to the legal system, systemic reforms. It's one of the reasons I've retired early.
- [36:40]
Hedley Thomas
His openness and thoughtful proposals were refreshing, although he expressed himself carefully to avoid a mini rebellion on the bench. Jeff Davies was concerned that political patronage, rather than intellect and acumen, too often determined the appointment of judicial lightweights. He could see the courts being stacked with mediocrity. The perils for litigants were obvious because poor judges meant that miscarriages of justice became inevitable. Davies called for an independent and transparent commission to help select judges. It was one of the stories that I filed before investigating the Jayant Patel scandal, and Davies had suggested that I should seek comment on his proposals from the former federal Attorney General, Michael Lavarch. I suspected that Lavarch was still peeved at my stories on alleged vote rorting in his former federal electorate. It was a good guess when I telephoned him as the new Dean of Law at Queensland University of Technology. He told me that my journalism stank and had never done a scrap of good for anyone. His hostility and his comments were cutting. The episode proved my theory that journalists were hopelessly thin skinned, even as they made inferences or reported facts that could ruin or damage the lives of other people. But Davies understood that if the media took up an issue, politicians usually followed and then change might be possible. He spoke candidly of his concern about the right to silence. He believed that a jury should be permitted to draw adverse inferences in relation to an accused who exercised a right to silence. He was also agitating to change the law to permit the use of evidence illegally obtained. Although criminal defence lawyers vehemently disagreed with Davies and regarded some of his ideas as heresy, nobody doubted his intellectual force. On the first day of the Commission of Inquiry, mark 2 in court 34 everyone bowed respectfully and stood to attention. When Davies entered, these shenanigans were over. It was as though a strict but fair headmaster, with no tolerance for the naughty pupils, had come to restore order to the classroom. I'll start with appearances, said Jeff Davies as he surveyed the lawyers seeking permission to do battle before him.
- [39:26]
Jeff Davies
This is of course a public inquiry and unless I make any order to the contrary, all proceedings will be made public, he added.
- [39:37]
Hedley Thomas
Peter Leck and Darren Keating must have felt sick. Their lawyers had won the battle, but now the two hapless hospital administrators were about to lose the war. After the shutdown of the first inquiry, Lec's spirit soared from depression to elation. It appeared that both men had trounced the system and would not even lose their jobs. Despite their incompetence. Neither Leck nor Keating had anticipated the public backlash and political backflip that led to the inquiry arising anew from its own ashes. Their folly in not accepting the last ditch offers of immunity from Toni Morris and thus saving his inquiry and themselves became the talk of the legal community. Now all bets were off. Davies was not bound by any previous undertakings or offers and he was in no mood for deals. He and the legal team of David Andrews, Richard Douglas, Damien Atkinson and Errol Morzone devised a strategy. They needed to hear evidence from the most important witnesses, culminating with Keating and Leck, then tie up dozens of loose ends and produce a major report with far reaching findings and recommendations. Leck's lawyers and psychiatrists were determined to keep him out of court. 34 citing the mental health condition that had worsened after the grilling by Morris, Lex psychiatrist Dr. Martin Nothling weighed in with this. Individuals suffering from such a major depressive episode and generalised anxiety disorder would be expected to have difficulties with concentration and memory. Cognitive processes would be expected to be slowed and the organisation of his thoughts would be expected to be impaired. Although sympathetic to Peter Leck's situation, former judge Jeff Davies ruled that he must give evidence. The patients quietly applauded. Davies at no stage relished his role as Commissioner. But his professionalism, measured low key handling and vast experience put the inquiry back on track. He was inscrutable and poker faced, the antithesis of Tony Morris. When the story of Patel first broke, Davies had followed it from his new farm apartment with avid interest. The incompetence of the surgeon and the system fascinated Davies in his retirement. On a trip to the United States while the Morris inquiry was ongoing, Davies had spoken to American friends about the revelations. They were scarcely interested, he found, until the following day when the New York Times carried a lengthy story about it on its front page. He brought it home as a memento. Now, after a life's work in law, Davies was poised to make a major impact on the health system. His persistence and the dogged work of Richard Douglas in extracting secret Cabinet papers, confidential emails and covered up hospital reports showed clearly that the culture of concealment was fostered at the highest levels by Peter Beattie himself. Although the Premier denied it. One of the most damning Documents was a 12 November 2002 memo written by Cabinet liaison officer Brad Smith about a secret decision to suppress a series of reports which had been intended for public release to show how all the hospitals and their staff were performing. Smith wrote this to the then heads of Queensland Health, Rob Stable and his then deputy Steve Buckland.
- [43:44]
Jerry Mullins
Neither the proposed public report which was attached to the Cabinet submission, nor any of the 60 individual hospital reports are to be distributed to anyone. Senior management can be briefed on the outcomes of the quality measurements and the contents of the documents, but they are not to be given copies of any of this material. The Department of the Premier and Cabinet advised that The Premier has emphasised that Cabinet does not want this material released or circulated in any way.
- [44:12]
Hedley Thomas
For years, the Bedie government and its predecessors, including the former Coalition government, had used Cabinet to hide thousands of sensitive documents. The method was very simple. Under the provisions of the Freedom of Information act, anything taken to Cabinet was exempt from disclosure to the public and to journalists. The extent of the abuse of Freedom of Information was revealed when Michael Clare, a former Cabinet senior staffer, testified that he had to find a refrigerator trolley to wheel cartons of documents in and out of Cabinet, ensuring they would be withheld from the public for 30 years. The procedures were subsequently streamlined, with legislation permitting documents to be deemed to have been taken to Cabinet without the bother of actually wheeling them in. When Davies wrote to Beattie and opposition leader Lawrence Springbok, inviting them to either put up evidence to rebut probable conclusions about their egregious conduct or accept the potential adverse findings, Etie replied, I am
- [45:27]
Dr. Martin Carter
prepared to act to continue my government's record of openness and accountability.
- [45:33]
Hedley Thomas
Davies dismissed that glib line as nonsense. He began exposing the deviousness of politicians and their hypocrisy, even as the premier and his followers protested their innocence. Chapter 71 Forensic Scrutiny When Dr. Steve Buckland's partner asked what he would like for Christmas 2005, the sacked former director general knew immediately.
- [46:07]
Dr. Steve Buckland
I want 2006, he groaned.
- [46:11]
Hedley Thomas
Like many of the casualties of the Jayant Patel scandal, the patients, nurses, doctors and bureaucrats, Buckland arrived to give his evidence at court 34 looking meek and beaten. He had spent weeks compiling an exhaustive statement with dozens of attachments, and now he just wanted to put it all behind him. Buckland believed that the ills in the health system were the product of a lack of money combined with political interference, the worsening health of patients, a workforce shortage and doctors reluctant to admit mistakes. It was little wonder that Patel had gained a toehold at a regional hospital.
- [46:55]
Narrator / Reporter
He said, I did not create the
- [46:58]
Dr. Steve Buckland
public health system in Queensland and the bureaucracy that goes with it. No individual did. No individual is especially responsible for its values. No individual can take credits for its successes. Until we get beyond the culture of blaming individuals and groups for the shortcomings of a system, we will not get very far.
- [47:19]
Hedley Thomas
I recalled his willingness to blame one of the most junior doctors, Andrew Donnerman, over the death of 10 year old Elise Neville, when serious health problems highlighted by that tragedy were unresolved. Beryl Crosby, still toiling tirelessly as leader of the Patient Support Group, recalled Steve Buckland being happy to permit Patel to continue in Bundaberg, even though he would not have let the surgeon operate on him. Buckland wanted to resume his career as a medical practitioner and avoid the politics of the health system from now on, as he put it. But inquiry lawyer Richard Douglas needed some answers.
- [48:03]
Richard Douglas
I want to make this suggestion to you and I ask you to carefully consider it before you give your answer. I suggest to you that Your decision on 24 March 2005 to in effect refrain from taking any step forthwith to suspend Dr. Patel from undertaking clinical duties at Bundaberg Hospital involved a dereliction of your duty as Director General, sir, I reject that absolutely. I'm seeking to elicit from you in respect of a decision to which you are party in the conduct of Queensland Health during your time as Director General, how bad a surgeon has to be in order to move the Director General to cross the Rubicon and suspend that person.
- [48:45]
Dr. Steve Buckland
I would have to be concerned to the point where I thought that the individual was dangerous, the patients were dying unnecessarily, or that there was some other major event in terms of the surgeon's either mental or surgical capacity.
- [48:57]
Hedley Thomas
In the days before Buckland gave evidence, his SAC deputy, Dr. John Scott, his career in tatters, was melancholy while recounting political meddling in the health system. When asked if he had identified any deficits in his own performance as A senior bureaucrat, Dr. John Scott, the man who had two months earlier elevated a trivial dinner party of journalists at Bundaberg's Indian Curry Bazaar restaurant into a matter of of urgent review by the Premier and the Crime and Misconduct Commission, took some time to answer. I think probably that if I look back in retrospect, I would say that I probably was more of an activist for the government and the Minister than perhaps I should have been, he said softly. We shook hands. On his way out, We heard from Dr. Con Aroney, a leading cardiologist who had quit the public health system because of his disgust with management's approach to patient care. Dr. Oroni regarded some of his former bosses as sociopaths, as he put it, for their inability to grasp the nettle. We heard, too, from Dr. Rob Stable, who served as director general for eight years and left just before everything hit the fan. He absolved himself of responsibility for the mess. Dr. Jerry Fitzgerald, the disarming and mild mannered chief health officer, attracted sympathy from patients and key figures, including Tony Hoffman. Although he had misled me and others about Jayant Patrick, it was difficult to dislike Jerry Fitzgerald, a man who came across as caring and sincere. His failure to respond properly to the Patel crisis was something Commissioner Jeff Davies would not gloss over.
- [51:01]
Jeff Davies
Davies asked, you knew he had 25 times the complication rate, or prima facie, it appeared that he had 25 times the complication rate for a very normal piece of surgery. Now, what more do you want to protect the potential patients of Bundaberg Hospital?
- [51:20]
Narrator / Reporter
A more detailed investigation of those cases.
- [51:24]
Jeff Davies
And in the meantime you let him continue to practise and perform surgical procedures?
- [51:30]
Narrator / Reporter
I would always seek to try and protect the patient where possible.
- [51:35]
Jeff Davies
What you did was you protected Dr. Patel rather than the patients.
- [51:40]
Narrator / Reporter
Well, that was not the intent.
- [51:42]
Jeff Davies
See, one possible view that I could form, doctor, and I'm not saying for a moment that I have formed or that I am, is that you were deliberately concealing this unfavourable data in the hope that because Dr. Patel was likely to leave reasonably soon, it would all go away.
- [52:02]
Narrator / Reporter
Well, that was not my consideration at the time.
- [52:06]
Hedley Thomas
Away from operating theatres and wards, in this adversarial courtroom where a misstatement might be seen as deliberately misleading, the doctors were no match for the lawyers. The clinical dissection continued day after day, disposing of the foolhardy, the true believers, the yes men. It was a warm up for what should have been the climax. The appearance of Bundaberg Hospital's managers, Peter Leck and Dr. Darren Keating. But by the time they arrived, so much blood had been spilled that it was possible to feel sorry for them. Keating must have felt betrayed and foolish for defending Patel, who deceived him along with almost everyone else. Keating had become a laughingstock. Worse, he faced prosecution. His best strategy at the inquiry was to stick to the one he had adopted all along and maintain that Patel was not too bad. The surgeon, safely back in the United States, had tried to call Keating at one stage, but hung up before making contact. Richard Douglas, one of the inquiry's senior lawyers, urged Darren Keating to consider more than one proposition very carefully. I suggest to you Douglas would begin. And we knew the question would require the outflanked witness to agree or disagree, that his conduct amounted to a gross dereliction of duty. The questions were like sharp blades. Another severed head plopped into the basket. Jerry Mullins, the lawyer for the patients, and John Allen, the lawyer for the nurses, mopped up.
- [53:55]
Jerry Mullins
When you look back now, do you agree there was a raging fire of Dr. Patel's incompetence?
- [54:01]
Narrator / Reporter
Keating responded, I don't believe so.
- [54:04]
Tony Morris
I could not see a major trend
- [54:07]
Narrator / Reporter
taking into account the number of complications and concerns in each of these different areas.
- [54:13]
Hedley Thomas
Jerry Mullins and John Allen had stayed on a true and steady course for the truth. Throughout the public hearings, they put to Keating that he was lying for saying that he would have permitted Patel to operate on him at any time at the hospital.
- [54:29]
Narrator / Reporter
It is honest, Keating insisted.
- [54:33]
Hedley Thomas
But Alan barked, it's not the truth. What would it take for someone in a position of responsibility to own up and admit fault and say, look, I'm sorry. I am partly responsible for all of this and I deserve censure. But there was little contrition in court. 34 Nobody did anything wrong. Apparently having destroyed the first inquiry, a move that backfired, and then failing with a legal argument that his fragile psychiatric condition should preclude him from giving any evidence at the second inquiry, Peter Leck and his lawyers had a small win. Orders to shield him from the media throng were made. But Jeff Davies needed Leck's sworn testimony. At this late stage, and with just a few days until the curtain fell blind, Freddy could piece together most of what had gone wrong in Bundaberg. Davies, however, could not make findings against individuals until they had been given an opportunity to state their cases and respond to questions. Peter Leck was afforded every courtesy by his inquisitors, none of whom wanted to cause him further mental distress. When Davies asked if it occurred to
- [55:54]
Jeff Davies
Leck at any stage to consider suspending Dr. Patel from surgery, the humiliated hospital
- [56:01]
Hedley Thomas
boss said that he relied on Dr. Keating's opinion. the lunch break, Beryl Crosby and her friends in the patient support group, Tess Bramwich, Lisa Hooper and Doris Hillier, rushed to the other end of George street to Parliament House to hear the vanquished inquiry chief, Tony Morris, deliver a speech. He called it the Black Death in Queensland health. Morris, in robust form despite his judicial trouncing, credited Justice Martin Moynihan for turning
- [56:39]
Tony Morris
a lawyer, a member of the most distrusted and reviled profession in our community, into a popular and even heroic figure.
- [56:48]
Hedley Thomas
Earlier, Toni Morris had borrowed a quote from his wife when he quipped to
- [56:53]
Tony Morris
me, as Alice likes to say, we're bitter but not twisted.
- [57:02]
Hedley Thomas
80 kilometres away at Southport on the Gold coast, other pressing health issues were all too personal. My sister Rebecca methodically distilled the latest information about our mother Diana's condition. Frustratingly, the results from a biopsy of a tumour, 7-8 cm long, were inconclusive. The endocrinologist suspected that it was malignant, but the oncologist differed.
- [57:31]
Narrator / Reporter
However, it is my understanding that Dr. Feather has some doubts as to whether there may be cancer in the lung, which may explain some of her respiratory problems.
- [57:40]
Hedley Thomas
Rebecca wrote this to mum's GP, Dr. Jim Abrahams.
- [57:46]
Tess Bramwich
Whilst in hospital, she lost about 10 kilos. However, she has started to eat again and now has the strength to walk to the bathroom. Last week, we were advised to get Mum's affairs in order due to the status of her health. However, this week we have a different story altogether and we honestly don't know what is going on as the various medical teams and doctors don't communicate with each other or us.
- [58:18]
Hedley Thomas
Sick to Death is written and presented by me. Headley Thomas, the Australian's National Chief Correspondent. Claire Harvey is the Australian's Editorial Director. Audio editing, production and music have been done by Jasper Leake with assistance from Leah Samaglou and Neil Sutherland. Our producer is Kristen Amias. Production management by Stephanie Coombs Artwork by Sean Callanan. Thanks to Ryan Osland, Matthew Condon, Corinna Berger, Ellie Dudley, David Murray, Dominique McDermott, Zach Skulander and all our family, friends and colleagues who helped in this series and contributed voice, acting and special thanks to Tony Hoffman and Rob Messenger. Subscribers to the Australian Here near new episodes of sick to death first@sicktodeathpodcast.com and on Apple Podcasts. You can get exclusive access to photographs, videos, timelines and more at the website.
- [59:37]
Richard Douglas
Foreign.
- [59:49]
Podcast Host (Hedley Thomas or Narrator)
This podcast is made possible by subscribers to the Australian and our principal sponsor, Harvey Norman. Harvey Norman has provided unwavering support for my investigative podcast since 2018. For more information on this podcast and on our entire Investigative catalogue go to theaustralian.com au.